HR and Employee Screening Issues Affecting your Business

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Information contained in this page is of a general informational nature and nothing herein, or on this website, should be construed as legal advice. For advice on questions of law, please consult a qualified attorney for additional guidance.

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Employer (End User) Responsibility during Background Screening

When an employer uses an applicant’s background information to make informed employment decisions, they must do so in compliance with a number of federal and regulatory laws in place to protect applicants from any type of discrimination. The “End User” legal responsibilities include:

Establishing Permissible Purpose

Disclosure and Authorization

Evaluation; and

Adverse Action Notification

Let’s take a deeper look at End User responsibilities based on Equal Employment Opportunity Commission (EEOC) and Fair Credit Reporting Act (FCRA) guidelines.

Permissible Purpose

According to the FCRA, the End User must have a legal permissible purpose for requesting a background screen report. End Users requesting background checks from A-Check Global do so under the legal permissible purpose of employment. The permissible purpose of employment maintains slightly different rules from other consumer report permissible purposes. Of these rules, the End User’s responsibility of Disclosure and Authorization is one of the most crucial requiring compliance.

Disclosure and Authorization

The End User must properly disclose that they will conduct a background screen—and subsequently will receive a background information report—in a document consisting solely of the Disclosure. Following this disclosure, the next required step is to obtain authorization from the applicant prior to processing their background screen. It is the End User’s responsibility to manage the forms they provide to applicants. These forms are often referred to as Disclosure and/or Authorization forms and provide the applicant with details pertaining to permissible purpose for conducting the background investigation, and their rights throughout the process. Disclosure and Authorization forms can typically be signed physically or electronically. However, your company or organization should always consult with your legal team to confirm you are utilizing the appropriate forms, and, if you are utilizing an electronic signature option, to ensure your system complies with the E-SIGN Act of 1999 and UETA requirements. For additional information about this responsibility, you may contact A-Check Global and we will provide information on utilizing A-Check Global’s pre-prepared forms. After disclosure and authorization, End Users must focus on evaluation.

Evaluation

Evaluating background screening results is the responsibility of each hiring company or organization. Your background screening agency is legally unable to evaluate the background screen and make hiring decisions. While agencies may adjudicate reports based on a pre-defined matrix supplied by the End User, the End User must review and evaluate each report, prior to making a hiring decision, in order to maintain compliance.

The EEOC states that End Users perform the following steps when utilizing background information in making a hiring decision:

Apply the same standards to everyone, regardless of their race, national origin, color, sex, religion, disability, genetic information (including family medical history), or age.

Take special care when basing employment decisions on background problems that may be more common among people of a protected class.

Be prepared to make exceptions for problems revealed during a background check that were caused by a disability.

In the event that an evaluation yields a negative result, employers must participate in the adverse action process.

Adverse Action

Whenever Adverse Action is taken based on background screening results, the End User must notify the candidate. For instance, if you do not hire an individual based on criminal records located during the background screening process, you must supply the candidate with a pre-adverse notification followed by a final adverse notification.

The pre-adverse notification will afford the candidate the opportunity to dispute the findings on their report. It should provide details about the agency that completed the report, including the contact information to be used should the candidate wish to file a dispute. The Final Adverse Notification should be sent within a reasonable timeframe after the pre-adverse notification. While there is no time frame specified by the FCRA, A-Check Global best practices suggest waiting at least five days before sending the final notification and continuing to hold the job open in any case where the applicant files a dispute.

Regulatory compliance plays a major role in the background screening process. There are many potential risks and liabilities associated with utilizing reports, and it is in your company or organization’s best interest to follow best practices, guidelines and regulations outlined by the FCRA and EEOC. As the End User of a consumer or investigative background screen report, you have a number of responsibilities and should remain proactive in maintaining an understanding of these responsibilities, at all times. And as always, if you have any questions you may contact us at 877-345-2021 or clientsupport@acheckglobal.com.